President Michael D Higgins is incorrect to say nobody in Northern Ireland wants the Troubles amnesty planned by the British government. However, the president’s comment — made in Strasbourg on Tuesday — was an understandable mistake.
Years of careful debate on prospects and models for an amnesty came to a stunned silence last year when Brandon Lewis, then the Northern Secretary, announced a blanket amnesty Bill banning not only criminal prosecutions but inquiries, inquests and civil prosecutions.
This tore up the Stormont House agreement, a long-standing plan between London, Dublin and all the main Stormont parties except the Ulster Unionist Party. Stormont House would deal with the past through limited immunity, where testimony to a truth recovery body would be inadmissible in any future prosecution.
The amnesty Bill is opposed by every Northern Ireland party and victims’ organisation and has been condemned across academia, the rights sector and the legal profession.
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Less drastic forms of blanket amnesty have been seriously discussed for decades
Nevertheless, a LucidTalk poll last July showed a quarter of the public agreed with it. Support was three times higher among unionists than nationalists — the motive for the Bill is clearly to stop prosecutions of former soldiers, explaining the tribal skew. More interesting is that support was strongly correlated with age: the longer a person had lived through the Troubles, the likelier they were to agree with a blanket amnesty.
When the Bill was presented at Westminster this May it had been moderated to a conditional amnesty, where testifying to a truth recovery body is required to guarantee no future prosecution.
There is overwhelming public acceptance of this form of amnesty in Northern Ireland. A poll in July for Liverpool University found 47 per cent of respondents supported it, 18 per cent were opposed and everyone else neither agreed nor disagreed. Approval was highest among nationalists, reaching an outright majority.
There might have been less support if people had been asked specifically about the Bill. It is still seen as going too far and the Northern Ireland Office has made a poor job of explaining it. However, less drastic forms of blanket amnesty have been seriously discussed for decades.
London, Dublin and Sinn Féin agreed to commute all future sentences for Troubles offences as far back as 2001, although legislation on this was dropped at the last minute in 2006 after the SDLP raised the alarm.
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In 2013, Northern Ireland’s attorney general proposed an end to all Troubles criminal prosecutions. This was considered too controversial and Stormont House followed a year later, but Sinn Féin made a similar proposal in 2017.
One well-known figure still suggesting an amnesty is the journalist Brian Rowan, who has summed up his view as “you can’t have a peace process that releases prisoners and a past process that sends people to jail.”
Critics of the Bill say it is cruel and immoral to deny victims any hope of their day in court, yet offering false hope is little better
This is not quite as neat an argument as it sounds. Released prisoners were convicted, served time and freed under licence. Victims received some measure of truth and justice. Any process examining the 1,500 unsolved Troubles murders could legitimately have the same aim.
The problem with the ‘past process’ has become one of impracticality, rather than inconsistency. It is too late to secure convictions three decades after the end of the Troubles. Evidence is either unobtainable, unsafe or has already been used in ways that prevent it being put before a court.
The collapse of a trial of two former soldiers in May last year led to the Public Prosecution Service dropping other cases from the early 1970s, including one from Bloody Sunday. Last month, a judge ordered the Bloody Sunday prosecution to resume. This is seen as a final effort to bring cases from half a century ago to trial.
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Amnesty does not have to mean an end to investigations. The Bill would create a body to conduct criminal investigations, which the British government believes would meet its obligations under the European Convention on Human Rights for an effective investigation of deaths. There might be no justice but at least there would be truth.
Realistically, that is the best any process can offer. Even supporters of Stormont House concede convictions are vanishingly unlikely. In practice, making testimony to a truth body inadmissible renders any future prosecution impossible. Stormont House also grants a direct amnesty to all non-fatal Troubles offences, which will not even be investigated.
Critics of the Bill say it is cruel and immoral to deny victims any hope of their day in court, yet offering false hope is little better. Once it is realised convictions are out of reach, every scheme to deal with the Troubles amounts to an amnesty. Not everyone wants to admit it, or admit they will accept an amnesty for partisan reasons rather than on general principle. But if the British government pushes the Bill through, perhaps the most widespread reaction will be quiet relief.